Citation Nr: 0202460
Decision Date: 03/15/02 Archive Date: 03/25/02
DOCKET NO. 00-24 638 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
ATTORNEY FOR THE BOARD
D. J. Drucker, Counsel
INTRODUCTION
The veteran served on active duty with the United States
Armed Forces Far East (USAFFE) from November 1941 to July
1942 and from April 1945 to June 1946. He was a prisoner of
war (POW) of the Japanese Government from April 10, 1942, to
July 1, 1942.
The veteran died in February 1989 and the appellant, who is
his widow, appealed a June 2000 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manila, the Republic of the Philippines, which, in pertinent
part, denied service connection for the cause of the
veteran's death. That decision, and the transmittal letter
by which it was conveyed to the appellant, indicated that she
is not entitled to dependency and indemnity compensation
(DIC) because the veteran's death was held not to be service
connected.
The Board observes that, in the June 2000 rating decision,
the RO also denied the appellant's claim to accrued benefits.
However, her July 2000 notice of disagreement, and her
December 2000 substantive appeal, addressed only the RO's
denial of her DIC claim. Thus, as the issue of entitlement
to accrued benefits was not appealed, the Board will confine
its consideration to the matter as set forth on the first
page of this decision.
FINDINGS OF FACT
1. The veteran, who was a prisoner of war from April to July
1942, died in February 1989, at the age of 70. According to
the death certificate, the immediate cause of death was acute
respiratory failure, and the antecedent cause of his death
was bronchogenic carcinoma.
2. The medical evidence demonstrates treatment for acute
bronchitis in service, but further shows that no other
respiratory disorder, to include bronchogenic carcinoma, was
manifested during the veteran's periods of service or within
one year after his separation from service.
3. At the time of the veteran's death, he was not service-
connected for any disability.
4. No medical evidence has been submitted or identified
which would demonstrate that the veteran's death was related
to service, including his internment as a POW.
CONCLUSION OF LAW
The cause of the veteran's death was not related to an injury
or disease incurred in or aggravated by active military
service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310, 5107
(West 1991 & Supp. 2001); Pub. L. No. 106-475, 114 Stat. 2096
(2000) (codified at 38 U.S.C.A. §§ 5100-5103A, 5106, 5107
(West Supp. 2001)); 38 C.F.R. §§ 3.102, 3.303(a)(c), 3.307,
3.309, 3.312 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Preliminary Matters - Veterans Claims Assistance Act
Before addressing the issue on appeal, the Board notes that,
on November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Public Law No.
106-175 (2000) (now codified at 38 U.S.C.A. §§ 5100-5103A,
5106-7 (West Supp. 2001)), which substantially modified the
circumstances under which VA's duty to assist claimants
applies, and how that duty is to be discharged. The new
statute revised the former section 5107(a) of title 38,
United States Code, to eliminate the requirement that a
claimant come forward first with evidence to well ground a
claim before the Secretary of Veterans Affairs is obligated
to assist the claimant in developing the facts pertinent to
the claim. The new law affects claims pending on or filed
after the date of enactment (as well as certain claims that
were finally denied during the period from July 14, 1999, to
November 9, 2000). See generally Holliday v. Principi, 14
Vet. App. 280 (2001); see also Karnas v. Derwinski, 1 Vet.
App. 308 (1991).
In addition, VA has published new regulations, which were
created for the purpose of implementing many of the
provisions of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29,
2001) (to be codified as amended at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, and 3.326(a)). The intended effect of these
regulations is to establish clear guidelines consistent with
the intent of Congress regarding the timing and scope of
assistance VA will provide a claimant who files a
substantially complete application for VA benefits. These
new regulations also provide guidelines regarding VA's duties
to notify claimants of necessary information or evidence and
to assist claimants in obtaining evidence. These new
regulations, which in pertinent part are effective as of the
date of enactment of the VCAA, interpret and implement the
mandates of the statute, "and do not provide any rights
other than those provided by the VCAA." 66 Fed. Reg.
45,629. For the reasons discussed below, the Board finds
that the requirements of the VCAA and the implementing
regulations have been satisfied in this matter.
Changes potentially relevant to the appellant's claim include
the establishment of specific procedures for advising the
claimant and his or her representative of information
required to substantiate a claim, a broader VA obligation to
obtain relevant records and advise claimants of the status of
those efforts, and an enhanced requirement to provide a VA
medical examination or obtain a medical opinion in cases
where such a procedure is necessary to make a decision on a
claim.
The Board finds that the requirements of the VCAA have
clearly been met in this case. The appellant was advised, by
virtue of a detailed statement of the case (SOC) and
supplemental statement of the case (SSOC), issued during the
pendency of this appeal, of the pertinent law, and what the
evidence must show in order to substantiate her claim. We,
therefore, believe that appropriate notice has been given in
this matter. The Board notes, in addition, that a
substantial body of lay and medical evidence was developed
with respect to the appellant's claim, and the SOC and SSOC
clarified what evidence would be required to establish
service connection for the cause of the veteran's death. The
appellant responded to the RO communications with additional
evidence and argument, thus curing (or rendering harmless)
any previous omissions. See Bernard v. Brown, 4 Vet. App.
384, 393-94 (1993), infra; VAOPGCPREC 16-92 (57 Fed. Reg.
49,747 (1992)). Further, in a December 2000 letter, the RO
advised the appellant of the VCAA and its effect on her
claim, and again advised her of the types of evidence which
she should submit in support of her claim.
Accordingly, the Board believes that VA has no outstanding
duty to inform the veteran or her representative that any
additional information or evidence is needed to substantiate
her claim. VCAA § 3(a), 114 Stat. 2096, 2096-97 (now
codified as amended at 38 U.S.C. A. § 5103).
Likewise, it appears that all obtainable evidence identified
by the appellant relative to her claim has been obtained and
associated with the claims folder, and that she has not
identified any other pertinent evidence, not already of
record, which would need to be obtained for an equitable
disposition of this appeal.
Accordingly, we find that VA has satisfied its duty to assist
the appellant in apprising her as to the evidence needed, and
in obtaining evidence pertaining to her claim, under both
former law and the new VCAA. The Board therefore finds that
no useful purpose would be served in remanding this matter
for yet more development. Such a remand would result in
unnecessarily imposing additional burdens on VA, with no
additional benefit flowing to the appellant. The Court of
Appeals for Veterans Claims has held that such remands are to
be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en
banc), vacated on other grounds sub nom. Winters v. Gober,
219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet.
App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430
(1994). The Court has stated, "The VCAA is a reason to
remand many, many claims, but it is not an excuse to remand
all claims." Livesay v. Principi, 15 Vet. App. 165, 178
(2001).
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a) (West 1991 &
Supp. 2001). When there is an approximate balance in the
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (2000);
VCAA § 4, 114 Stat. 2096, 2098-99 (codified as amended at
38 U.S.C. § 5107(b) (West Supp. 2001)).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
of Appeals for Veterans Claims held that a veteran need only
demonstrate that there is an "approximate balance of
positive and negative evidence" in order to prevail. The
Court has also stated, "It is clear that to deny a claim on
its merits, the evidence must preponderate against the
claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert.
II. Factual Background
The veteran died in February 1989, at the age of 70.
According to the certificate of death, dated that month, the
immediate cause of his death was acute respiratory failure,
and the antecedent cause of the veteran's death was
bronchogenic carcinoma. At the time of the veteran's death,
he was not service-connected for any disability.
The veteran had recognized service in the United States Armed
Forces Far East from November 1941 to July 1942 and from
April 1945 to June 1946. He was a POW of the Japanese
Governement from April 10 to July 1, 1942. Service medical
records show that, in May 1945, he was treated for boils on
his chin and chest and, in August 1945, he was seen for acute
bronchitis that was treated with medication.
On an Affidavit For Philippine Army Personnel, completed in
November 1945, the veteran reported that he sustained
shrapnel wounds in April 1942 and had malaria from July to
December 1942, but denied permanent disability from his
wounds and illness. The veteran was hospitalized briefly,
from June to July 1946, for treatment of severe, chronic
external hemorrhoids. The hospital records indicate that he
denied a history of any serious disease. Physical
examination findings at that time included no dullness or
rales heard in the veteran's lungs; a pulse that was full and
regular, blood pressure that was 110/65, no heart murmur, and
no enlarged cardiac dullness.
Post-service, according to an October 1984 statement, V.G.M.,
M.D., treated the veteran from 1968 to 1981. The physician
said his records showed that the veteran had pulmonary
scarring noted on his first clinic X-ray in 1969, which was
reactivated in 1980 as "minimal PTB". Dr. V.M. said that
the veteran also had recurrent intestinal amoebiasis from
1980 to 1981.
According to December 1984 written statements from two of the
veteran's service comrades he was observed, while in Bataan,
to have a right temple wound.
On a Former POW Medical History, completed in November 1985,
the veteran reported sustaining a shrapnel wound on the right
side of his head, and checked "yes" to having dysentery,
malaria, pneumonia, and vitamin deficiency. He did not
indicate whether he had experienced beriberi, or joint or leg
swelling. He described his current state of health as fair,
with old age body pains and hypertension.
According to a November and December 1985 POW Protocol
Examination report, the veteran complained of bilateral
shoulder and right hip pain. Clinical evaluation findings as
to the veteran's heart and lungs were reported as essentially
normal. An electrocardiographic record showed normal sinus
and axis with non-specific ST-T changes. A report of a chest
X-ray revealed faint patchy densities in the right apex, and
possibly also in the left apex. The rest of the lung fields
appeared clear, and the heart was normal in size and
configuration. The diagnostic impression noted by the
examiner was pulmonary infiltrations of both apices, of
undetermined etiology. The recommendation was for clinical
correlation and radiographic follow-up for better evaluation.
Arteriosclerosis of the thoracic aorta was also noted on the
X-ray report. A December 1985 summary of findings included
pulmonary pathology, bilateral, etiology undetermined. There
was no medical evidence of the current existence of any
disability resulting from nutritional deficiencies, forced
labor, or inhumane treatment while a POW, and no residuals of
malnutrition, dysentery, or malaria.
In a January 1986 rating decision, the RO denied the
veteran's claim for service connection for multiple
disabilities that included pulmonary tuberculosis,
malnutrition, dysentery and amebiasis.
In September 1999, the appellant submitted an Application for
Dependency and Indemnity Compensation, Death Pension and
Accrued Benefits by a Surviving Spouse or Child (VA Form 21-
534). In a January 2000 statement and in her November 2000
substantive appeal (received by the RO in December 2000), the
appellant maintained entitlement to benefits under the
provisions of legislation enacted in 1993 pertinent to POW's.
She said her husband's cause of death was cardiorespiratory
arrest due to carcinoma, and that the cardiorespiratory
arrest was related to heart disease. According to the
appellant, for a POW interned for no less than 30 days, heart
disease and peptic ulcer were considered service-connected if
manifested to a degree of 10 percent or more after
separation. She asserted that the veteran was a POW for more
than 30 days, and that the cause of his death was related to
his heart illness. The appellant also contended that, during
his lifetime, the veteran had been treated for many illnesses
including avitaminosis, malnutrition, peptic ulcer, and heart
disease, but that the clinical records were unavailable. She
indicated that Dr. E. A. had treated the veteran for peptic
ulcer.
In a November 2000 statement, Dr. G. E. L. A., M.D., (Dr.
E.A., noted above) said that in October 1988 the veteran was
seen for bronchogenic cancer, peptic ulcer disease, and
essential hypertension.
In February 2001, the RO received VA hospital records dated
in 1983. They reveal that, in February and March of that
year, the veteran was treated for retinal detachment. In
August and September, he was hospitalized for a partial right
hip arthroplasty and, at discharge, his heart and lungs were
essentially normal.
In April 2001, the appellant submitted records from the
Jacinto Clinic, dated from December 1969 to March 1979, that
include annual employment examination reports. A December
1969 record indicates an essentially normal examination, and
reflects that a chest X-ray revealed a residual pulmonary
fibrosis on the right, most probably inactive. The veteran
was described as "physically fit". Chest X-rays in
February 1971, February 1972, May 1975, March 1976 and March
1978 and March 1979 reflected similar findings, noting an
inactive pulmonary scar since 1969. In March 1979, the
veteran's blood pressure was elevated, and an
electrocardiogram and regular checkups were recommended.
In June 2001, the appellant submitted a January 2001 request
from C.R., M.D., to the Pathology Department (evidently at
the Medical Center Manila) for a copy of the report of the
bronchoscopy biopsy performed on the veteran in December
1988. The appellant indicated that Dr. R.'s clinical records
had been discarded because they were more than ten years old.
She said several futile record requests were made to the
Medical Center in Manila, but records more than ten years old
were transferred to a warehouse in Dasmarinas, Cavite, that
was in disarray.
III. Analysis
According to 38 U.S.C.A. § 1110, a veteran is entitled to
disability compensation for disability resulting from
personal injury or disease incurred in or aggravated by
service. "A determination of service connection requires a
finding of the existence of a current disability and a
determination of a relationship between that disability and
an injury or disease incurred in service." Watson v. Brown,
4 Vet. App. 309, 314 (1993). Even if there is no record of
peptic ulcer, arteriosclerosis, organic heart disease or
hypertension in service, its incurrence in service will be
presumed if it was manifest to a compensable degree within
one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38
C.F.R. §§ 3.307, 3.309. While the disease need not be
diagnosed within the presumptive period, it must be shown, by
acceptable lay or medical evidence, that there were
characteristic manifestations of the disease to the required
degree. Id.
If a veteran is a former POW and, as such, was interned or
detained for not less than 30 days, certain diseases
(including beriberi heart disease) shall be service-connected
if manifested to a degree of 10 percent or more at any time
after discharge or release from active military, naval, or
air service even though there is no record of such disease
during service, provided the rebuttable presumption
provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38
U.S.C.A. §§ 1110, 1112(b), 1113; 38 C.F.R. §§ 3.1(y),
3.307(a)(5), 3.309(c) (2001). (The term "beriberi heart
disease" includes ischemic heart disease in a former POW who
experienced localized edema during captivity. 38 C.F.R. §
3.309(c).)
The Board observes that, where a former POW claims disability
compensation, omission of history or findings from clinical
records made upon repatriation is not determinative of
service connection, particularly if evidence of comrades in
support of the incurrence of that disability during
confinement is available. Special attention will be given to
any disability first reported after discharge, especially if
poorly defined and not obviously of intercurrent origin. The
circumstances attendant upon the individual veteran's
confinement, and the duration thereof, will be associated
with pertinent medical principles in determining whether
disability manifested subsequent to service is etiologically
related to the POW experience. 38 C.F.R. § 3.304(e).
The veteran was a former POW and, accordingly, ischemic heart
disease shall be presumptively service-connected if
manifested to a degree of 10 percent or more at any time
after his discharge from service, if there is evidence of
localized edema during captivity. Furthermore, as a combat
veteran, the veteran is entitled to have any statement or
testimony of leg and foot swelling or edema he presents
accepted as satisfactory evidence of that incurrence. See 38
U.S.C.A. § 1154(b) (West 1991). (The Board is assuming, for
the purpose of our analysis, that the veteran, as a former
POW, had engaged in combat with the enemy.) However, as
noted above, the veteran failed to indicate on his 1985 POW
medical history questionnaire on file whether he had suffered
from beriberi or experienced swelling with respect to his
legs and/or feet, or any other joints, while in captivity.
More important, the VA examiner specifically reported that
there was no medical evidence of any current disability
resulting from nutritional deficiencies, forced labor, or
inhumane treatment while a POW, or residuals of malnutrition,
dysentery, or malaria.
In order for service connection for the cause of the
veteran's death to be granted, it must be shown that a
service-connected disability caused the death, or
substantially or materially contributed to cause death. A
service-connected disability is one which was incurred in or
aggravated by active service, one which may be presumed to
have been incurred during such service, or one which was
proximately due to or the result of a service-connected
disability. 38 C.F.R. § 3.312 (2001).
The death of a veteran will be considered as having been due
to a service-connected disability when such disability was
either the principal or contributory cause of death. 38
C.F.R. § 3.312(a). The service-connected disability will be
considered the principal (primary) cause of death when such
disability, singly or jointly with some other condition, was
the immediate or underlying cause of death or was
etiologically related thereto. 38 C.F.R. § 3.312(b). The
service-connected disability will be considered a
contributory cause of death when it contributed so
substantially or materially to death, that it combined to
cause death, or that it aided or lent assistance to the
production of death. It is not sufficient to show that it
casually shared in producing death, but rather it must be
shown that there was a causal connection. 38 C.F.R. §
3.312(c)(1). The debilitating effects of a service-connected
disability must have made the veteran materially less capable
of resisting the fatal disease or must have had a material
influence in accelerating death. See Lathan v. Brown, 7 Vet.
App. 359 (1995).
There are primary causes of death which by their very nature
are so overwhelming that eventual death can be anticipated
irrespective of coexisting conditions, but, even in such
cases, there is for consideration whether there may be a
reasonable basis for holding that a service-connected
condition was of such severity as to have a material
influence in accelerating death. In this situation, however,
it would not generally be reasonable to hold that a service-
connected condition accelerated death unless such condition
affected a vital organ and was of itself of a progressive or
debilitating nature. 38 C.F.R. § 3.312(c)(3), (4).
In reviewing the evidence of record, the Board notes that the
veteran reported sustaining shrapnel wounds in April and
November 1945. However, during a medical examination in June
1946, as noted above, the veteran's body systems, including
his lungs and cardiovascular system, were normal. Following
his separation from active service in 1946, the veteran
complained of pulmonary tuberculosis, malnutrition, and
dysentery as a result of his wartime service, but there was a
lack of medical evidence to substantiate that claim.
Furthermore, the medical evidence of record from 1969 to
1988, covering nearly 20 years, does not reflect treatment
for disorders of the heart or lungs.
Regular employment examination reports, dated from 1969 to
1979, include chest X-ray reports that describe a pulmonary
residual fibrosis on the right, that was reported to be most
probably inactive. In 1975, X-ray examination showed an
inactive pulmonary scar since 1969. Slightly elevated blood
pressure was noted in March 1976.
VA hospital records, dated in 1983, indicate that the veteran
was treated for a detached retina and fractured right hip,
but are negative for reference to heart or lung disorders.
In fact, the veteran's heart and lungs were described as
essentially normal after his right hip surgery.
As noted above, in 1985, the veteran underwent a POW medical
examination that was negative for any evidence of beriberi
heart disease, leg swelling, or residuals of malnutrition.
In fact, the examiner specifically reported that there was no
medical evidence of the current existence of any disability
resulting from nutritional deficiencies, forced labor, or
inhumane treatment while a POW and/or residuals of
malnutrition, dysentery, or malaria. A chest X-ray taken at
the time included an impression of pulmonary infiltratrions,
both apices, of undetermined etiology.
Service connection for malnutrition, dysentery, and pulmonary
tuberculosis was denied by the RO in its January 1986 rating
decision.
The veteran subsequently expired in 1989, as discussed above,
from respiratory failure secondary to bronchogenic carcinoma.
Upon careful review of this case, the Board finds no medical
evidence has been submitted to relate the veteran's death to
service. The appellant has contended in this appeal, without
support in the medical record, that the veteran suffered from
avitaminosis, malnutrition, peptic ulcer disease, and heart
disease due his POW internment. Thus, given a finding that
the veteran died of cardiorespiratory failure (which the
appellant claims would equate to a finding of beriberi heart
disease), she believes that the veteran died from a
presumptive disease specific to former prisoners of war under
38 C.F.R. § 3.309(c).
In evaluating this premise, the Board notes that the veteran
was not service-connected for ischemic heart disease, or any
other disability, at the time of his death. However, even if
we were to assume, arguendo, that the veteran did suffer from
ischemic heart disease, the Board notes that the veteran died
from respiratory failure secondary to bronchogenic carcinoma.
While the veteran was noted to suffer from slightly elevated
blood pressure in 1976 and from hypertension in 1988, there
is no medical evidence in the record before the Board that
this disease was the immediate or underlying cause of the
veteran's death, or that it played a contributory cause,
i.e., that there was a causal connection. Moreover, there is
no indication that the veteran's hypertension was related to
service. In fact, the Board would note that, contrary to the
appellant's repeated contentions that the veteran died of
cardiorespiratory failure, the certificate of death documents
that he died of acute respiratory failure. Thus, heart
disease was not considered an immediate or antecedent cause
of the veteran's death.
The appellant further contends that, under the POW
regulations, set forth above, the cause of the veteran's
death should be service-connected, arguing that he was a POW
and died of sickness related to heart disease. We recognize
the appellant's sincere belief that the veteran's death was
related in some way to his POW experience. Nevertheless, in
this case, the appellant has not been shown to have the
professional expertise necessary to provide meaningful
evidence regarding the causal relationship between the
veteran's death and his active military service, including
his POW experience. See, e.g., Routen v. Brown, 10 Vet.
App. 183, 186 (1997) ("a layperson is generally not capable
of opining on matters requiring medical knowledge", aff'd
sub nom. Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998),
cert denied, 119 S.Ct. 404 (1998). See also Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).
Therefore, although we are deeply sympathetic with the
appellant's loss of her husband, we find a lack of competent
medical evidence to warrant a favorable decision. The Board
is not permitted to engage in speculation as to medical
causation issues, but "must provide a medical basis other
than its own unsubstantiated conclusions to support its
ultimate decision." Smith v. Brown, 8 Vet. App. 546, 553
(1996). Here, the appellant has failed to submit competent
medical evidence to provide a nexus between any in-service
injury or disease and the conditions that caused and
contributed to cause the veteran's death. The preponderance
of the evidence is against the appellant's claim of
entitlement to service connection for the cause of the
veteran's death.
ORDER
Service connection for the cause of the veteran's death is
denied.
ANDREW J. MULLEN
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.